AD1 order dated January 29, 2013, modifying judgment of conviction. Decision below: 102 AD3d 601, 960 NYS2d 66. Pigott, J., granted leave March 11, 2013.

ISSUES PRESENTED: (1) Whether the defendant was guilty of identity theft, criminal impersonation, and forgery for sending e-mails purporting to come from his father’s academic rivals – whether injury to reputation is "injury" under the statutes, and whether "benefit" includes benefit to his father’s career. (2) Whether the prosecution violated the defendant’s First Amendment rights because the subject of the e-mails was a scholarly debate about the Dead Sea Scrolls. (3) Whether aggravated harassment is committed when the e-mail communications are not sent to the "victim". (4) Whether the violations of the internet terms of service constitute the crime of unauthorized use of a computer.

Factual Background:  The son of a noted Dead Sea Scroll scholar sent a slew of emails using pseudonyms and other professors’ names to undermine critics of his father’s work.  Convicted of multiple counts of identity theft, criminal impersonation, forgery, aggravated harassment, and unauthorized use of a computer, he appealed.

Issues on Appeal: (i) whether injury to reputation can constitute a “benefit” or an “injury” as required by the criminal impersonation statute; (ii) the constitutionality of the second-degree aggravated harassment statute that proscribes communicating with another “in a manner likely to cause annoyance or alarm” and while acting with that intent; (iii) whether someone who has permission to use a computer but commits a crime using the computer engages in the unauthorized use of that computer

The Court held (6-1 with Chief Judge Lippman concurring in part and dissenting in part): (i) injury to reputation can be sufficient to make out criminal impersonation, but that no such injury was caused by the “mere creation of email accounts” in other people’s names; (ii) Penal Law § 240.30(1)(a) is unconstitutionally vague and overbroad; (iii) Penal Law § 156.05 is directed toward hackers, not someone using a computer with permission but who uses if for criminal purposes.

CAL Observes:  It took a high profile case to prompt the Court of Appeals to review a bevy of criminal statutes, most of them misdemeanors, that had previously been subject to little interpretation.  Indeed, several federal courts had more than a decade ago concluded that the second-degree harassment statute was unconstitutionally vague and overbroad, but the statute had escaped review by New York’s highest court despite its frequent use in the state.  Perhaps most significant for the future will be the rulings on the criminal impersonation statute, which in an era of anonymous internet postings, might see resurgent use.  We find it hard to quibble with Chief Judge Lippman’s observation that this whole case might have been better brought as a civil tort rather than a criminal prosecution.